Bill of Rights in Indian Country sets floor for protections

On a recent trip, I noticed a large, granite Ten Commandments monument in front of the Bloomfield, N.M., city offices. Given recent decisions concerning the constitutionality of such monuments, especially in a legal environment where in 1985 the United States 10th Circuit Court of Appeals in Denver forced Bernalillo County to remove crosses from the county seal (Friedman v. Board of County Commissioners of Bernalillo County), I wondered how long this monument would last. It also made me think about whether Indian tribal governments are under the same constitutional constraints as state governments.

Does the U.S. Constitution apply to tribal governments? Does the federal Bill of Rights limit the actions of tribal governments? Could a tribal government be prevented from putting up its own equivalent to the Ten Commandments monument because it violates the First Amendment establishment clause? The answer to all of these questions is no.

When the Constitution and the Bill of Rights were adopted, Indian tribes were separate sovereigns outside the jurisdiction of the United States. Indians were not even citizens of the United States until 1924. So, when the Constitution and Bill of Rights were adopted, they didn’t apply to tribes any more than they applied to countries like Mexico or Canada. This rule was recognized by the federal courts at the end of the 19th century.

In Talton v. Mayes, a Cherokee Indian defendant, Bob Talton, had been tried in a Cherokee tribal court, found guilty and sentenced to death by hanging.

Talton filed a habeas corpus petition in the U.S. Supreme Court saying that the Cherokee tribal court proceeding had violated his rights under the Fifth and 14th amendments to the Constitution. The court rejected Talton’s petition, finding that as “domestic dependant nations” under federal law, Indian tribes were simply not subject to the limitations of the Constitution or the Bill of Rights.

The Talton decision represented the status quo in Indian Country for the next 70 years. Things only changed in the 1960s, when there was a sharp increase in the number of non-Indians who were living on reservations or having commercial dealings with tribal governments. In order to protect non-Indians, Congress approved the Indian Civil Rights Act of 1968.

The ICRA applies some but not all of the protections contained in the Bill of Rights to Indian Country and tribal governments. While the ICRA guarantees the “free exercise of religion,” it does not contain any provision prohibiting the establishment of religion by tribal governments.

This omission was done in recognition of the fact that some tribal governments, the pueblos of New Mexico in particular, have theocratic governments and that all tribal governments have strong religious components. When I was the chief legislative counsel of the Navajo Nation, I regularly took part in government-sponsored religious ceremonies that were intended to advance the interests of the nation, such as a lengthy protection ceremony before high-stakes settlement negotiations between the nation and the Hopi Tribe in which I was one of the designated negotiators.

Because of this omission, tribal governments could, if they were inclined to do so, put up Ten Commandment monuments or Christmas crèches in front of their government offices without violating any protected rights.

The ICRA contains other intentional omissions. There is no equivalent of the Second Amendment right to keep and bear arms in the ICRA. There is no equivalent to the Third Amendment protection against the quartering of troops. There are also some important additions. The ICRA provision equivalent to the Eighth Amendment in the federal Bill of Rights protecting against cruel and unusual punishment limits the authority of tribes and tribal courts with regard to the punishments they can impose in criminal cases to not more than one year in jail and a maximum fine of $5,000. After approval of the ICRA, no tribal government has the authority to hang a tribal member, as happened to Bob Talton.

There is also the potential that tribal courts will interpret the ICRA rights differently than a federal court would interpret rights under the Bill of Rights. However, as it turns out, federal interpretations of the equivalent federal rights represent a “floor” below which no tribal court can go.

So, while tribal courts are allowed to interpret ICRA rights as granting greater rights than the Bill of Rights, they cannot interpret the ICRA in a way that affords less protection than the Bill of Rights.

Steven C. Boos is an attorney with the firm Maynes, Bradford, Shipps & Sheftel in Durango. Reach him at sboos@mbssllp.com.